R v Baker HC NAP CRI 2008-020-002369

[2008] NZHC 2459

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2008-020-002369

THE QUEEN

v

SARAH NICOLE BAKER

Hearing:         31 July 2008

Appearances: J E Rielly for the Crown

A J Snell for the Prisoner

Judgment:      31 July 2008

SENTENCING NOTES OF ANDREWS J

Solicitors:

Elvidge & Partners, P O Box 609, Napier

Counsel:

A J S Snell, P O Box 101, Hastings 4201

R V BAKER HC NAP CRI 2008-020-002369  31 July 2008

[1]      Sarah Nicole Baker, you appear for sentencing today having pleaded guilty to charges under the Misuse of Drugs Act 1975, that is one charge of conspiring to supply methamphetamine and a representative charge of offering to supply methamphetamine.   No doubt Mr Snell has explained to you that the maximum penalty provided in respect of each charge is 14 years imprisonment.

Relevant facts

[2]      Your  offending  was  disclosed  through  a  Police  surveillance  operation undertaken between 1 September and 20 December 2007.   You have accepted the summary of facts in which it is said that you conspired with Wayne Hart to source methamphetamine with the intention of supplying it to others.

[3]      Your role was to assist Mr Hart with sales and delivery of methamphetamine to customers, collecting cash and recovering debts. Intercepted communications reveal that over the surveillance period you offered to supply methamphetamine on at least 13 occasions.

Sentencing process

[4]      In the sentencing process, I will first talk to you about the general rules relating to sentencing.  I will be talking about principles that are set out in the law that I have to apply.  Then I have to decide what sentence is appropriate by taking those principles into account  That is a two step process.

[5]      The first step is to establish what we refer to in Court as the starting point. The starting point is what would be the sentencing post for the charges on which you have been convicted if you had gone through a trial in this Court.

[6]      The second step is then to take that starting point and decide what is the appropriate sentence for your offending, and for  you.   I do this by considering whether there is anything about your offending that makes it more or less serious –

we call those the aggravating or mitigating factors – and they would lead me to impose a sentence that is either greater or less than the starting point.

[7]      I also consider matters that relate to you personally because these may also lead me to adjust your final sentence either upwards or downwards.

[8]      In sentencing you I have to take into account what the law has set out as the purposes of sentencing.  In particular, I have to hold you accountable to make you understand that you are responsible for what you have done.   I have to consider deterrence  and  protection  of  the  community.    I  also  have  to  denounce  your offending, that means to tell you, in as clear a way as I can, that your offending is not acceptable in New Zealand society.  At the same time the purpose of sentencing is to help you with getting back into the community as a useful member of it.

[9]      There is also a need to protect the community from methamphetamine.  The social cost to families and to the community that follows from the use of methamphetamine is destructive.   It is devastating and we see its effects in the Courts every single day.

[10]     There are also some general principles of sentencing that I have to consider. In your case, I have to consider the gravity of your offending, including the extent of your responsibility for it and the seriousness of your offending in comparison with other types of offences.

[11]     It is also generally desirable to keep consistency in sentencing levels and I am also directed to impose the least restrictive outcome that is appropriate in the circumstances.

[12]     It is desirable to keep offenders in the community as far as that is practicable with regard to the safety of the community, but the Court can impose a sentence of imprisonment in order to achieve the purposes of sentencing that are relevant to your case.  In relation to the offences to which you have pleaded guilty I have to say that the Misuse of Drugs Act provides a presumption that a sentence of imprisonment will be imposed.

Starting point

[13]   So I come to the starting point.   In sentencing on charges involving methamphetamine, this Court is guided by the Court of Appeal’s judgment in the case of Fatu1.  In Fatu, the Court of Appeal set four levels (or bands) of sentencing for the supply and manufacture of methamphetamine.   The bands depend on the quantity involved.  The lowest band is less than 5 grams, the highest is 500 grams or more.  Counsel appearing before me today have agreed that in your case the first or lowest band applies and the Court of Appeal said that the appropriate starting point is imprisonment for two to four years.  It must be remembered that in Fatu the Court

of Appeal was considering a maximum available penalty of life imprisonment, which does not apply in your case.

[14]     In considering the appropriate starting point for you, I have considered the sentences imposed in cases where the circumstances were similar to  yours.   Of course, no two cases are ever exactly the same but these do provide guidance and a basis for keeping consistency.

[15]     In relation to conspiracy, a starting point of two years imprisonment was adopted in the case of Johnson2, where there were eight sales of 1 to 2 grams of methamphetamine.   In the case of Lockart-Blundell3  the starting point was three years   imprisonment   where   there   were   sales   of   a   total   of   5   grams   of methamphetamine over a three month period.  A starting point of 2½ to three years

imprisonment  was  adopted  in  Brown4   for  an  offender  described  as  a  low  end

participant in a continuing course of supply.

[16]     Then in relation to offering for supply, there are the starting points adopted in Edwards5 and Joseph6 where the offers involved similar amounts of methamphetamine to those involved in this case.  The starting points were two and

2¼ years respectively.

1    R v Fatu [2006] 2 NZLR 72

2    R v Johnson HC WHA CRI 2006-088-1233 29 September 2006, Asher J

3    R v Lockart-Blundell HC ROT CRI 2006-063-4690 11 March 2008, Cooper J

4    R v Brown HC AK CRI 2005-004-14291 21 March 2007, Stevens J

5    R v Edwards HC WHA CRI 2005-029-1304 13 June 2006, Potter J

6    R v Joseph HC GIS CRI 2005-016-145 1 March 2006, Potter J

[17]     Mr Snell has referred me to the case of List7  which, as he said, is similar to your case in that there is a recognition there of the different roles in offending where one person is under the domination of another person.

[18]     Both Mrs Rielly, for the Crown, and Mr Snell, on your behalf, have agreed that the appropriate starting point in your case is two to three years imprisonment.  I have concluded that the appropriate starting point is 2½ years imprisonment.

Pre-sentence report

[19]     I go on now to consider other matters.   The pre-sentence report from the Probation Officer records that you had a strict upbringing with your grand-parents, who adopted you as a baby, and that you rebelled when you were at High School. You met Wayne Hart some 3 years ago.  He is almost twice your age.  After that, your life focused on Mr Hart and drug use and distribution of drugs. You did what Mr Hart told you to do.  You have no previous convictions.

[20]     You told the Probation Officer that you had been using methamphetamine on a daily basis  and  stopped  this  about  three  or four  months  ago  when  you  were arrested.     You  have  accepted  the  summary  of  facts  and  are  disgusted  and disappointed in yourself and you have started addressing your offending.  You have started a training course and counselling to deal with your drug problem.  You have also made contact with your natural father, albeit so far only by telephone.

[21]     A home detention report has been prepared.  The proposed address for home detention is with Mr Hart’s mother.   Notwithstanding the concern that naturally arises out of that, Mrs Hart is considered by the Probation Officer to be a suitable sponsor for home detention and it is not anticipated that Mr Hart will be there.  The Probation Officer recorded that Mrs Hart feels a sense of responsibility, given that her son was influential in your offending and she intends to support you in your effort to maintain an offence-free and drug-free lifestyle.

7    R v Timu and List HC Napier 10 February 2005, Gendall J

[22]     Mrs Hart assured me today in Court that she has been made aware of, and accepts, the conditions and implications of home detention.

Counsel’s submissions

[23]     Mr Snell submitted that your offending arose from a situation where you were involved with Mr Hart and very much subject to his influence.   You were introduced to methamphetamine by him and became addicted.  As he said, Mr Hart is twice your age, domineering and controlling.  It was agreed by both counsel here that he treated you in an appalling manner.

[24]     Mr Snell also stressed your early guilty plea, your young age, that you have no previous convictions, and the considerable steps you have taken since your arrest. These have included referring yourself to Addiction Services, ceasing your drug use, ending your relationship with Mr Hart, and staying away from people involved in drugs.  I have seen the letter confirming your appointment with a Psychologist.

[25]     Mr  Snell  noted  that  your  pre-sentence  report  is  positive,  that  you  are motivated to address your offending, and that you are assessed as being at a low risk of re-offending.  He says you have been able to look back and see your decline and dependency.  You now look at that period of your life, he says, with remorse and sadness.   He asked that I consider a sentence of home detention with special conditions to ensure you continue to address your drug dependency.  He says you accept and understand the challenge that you face in that respect.

[26]     In considering a sentence of home detention, I am mindful that under the Misuse of Drugs Act there is a presumption that a sentence of imprisonment will be imposed.  Were I to impose a sentence of imprisonment, it would be in the order of about 20 months imprisonment.  However, I am satisfied that in your case a sentence of home detention is appropriate.

Sentence

[27]     Ms Baker, would you stand please.

[28]     On  each  of  the  charges  of  conspiring  to  supply  methamphetamine  and offering to supply methamphetamine, you are sentenced to 12 months home detention.

[29]     The sentences are to be served concurrently, that means, at the same time. [30]        The conditions are that:

a)       You are to reside at 29 Caernarvon Drive, Flaxmere, Hastings, and not to move from that address without prior written approval of the Probation Officer.  That will mean that you will be able to attend a treatment programme, the training programme you are at present involved in, and to go to work when you are successful in obtaining employment.

b)You are to attend and complete an appropriate addiction programme to the satisfaction of your Probation Officer and programme provider. Details of the appropriate programme are to be determined by your probation officer.

c)       You are to abstain from the consumption of alcohol and illicit drugs for the duration of the sentence of home detention.

d)       Finally, you are to have no contact, in any form, with Mr Wayne Hart.

[31]     I note that it is necessary for a dedicated land-line to be installed at the address for home detention and for that purpose commencement of your sentence is deferred for 14 days to enable the dedicated landline to be installed.

[32]     Until your sentence commences, you are remanded to the same address on your present conditions of bail.

[33]     Stand down please.

Andrews J